Terrorism and Piracy: The New Alliance

With the tragic news that four Americans have been killed by Somali pirates, the scourge of modern-day pirate militias is driven home as something more than an occasional colorful nuisance. It is a global threat linked not only with failing states, but increasingly with Islamic terrorism as well. In the following article from the February issue of COMMENTARY, Tara Helfman and Dan O’Shea explain the terrorist-pirate connection and offer a new game plan for its eradication.

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In November 2010, British retirees Paul and Rachel Chandler were released after a year of captivity at the hands of Somali pirates. “We are happy to be alive, happy to be here, desperate to see our family, and so happy to be amongst decent, everyday people,” a smiling Mrs. Chandler told journalists in Mogadishu. The Chandlers are the lucky ones. Right now, more than 600 foreign nationals remain in captivity in Somalia. Since most are crewmembers on commercial merchant vessels, the price of their freedom will most assuredly be higher than the reported $1 million exacted as ransom for the Chandlers’ release. Even more troubling is the growing body of evidence that these pirate ransoms may be funding the next generation of Islamic militants in the graveyard of the last large-scale U.S.-led intervention in Africa.

In 2008, Somali pirate militias were reported to have collected up to $150 million in ransom payments. The total of ransoms paid in 2010 will surely dwarf those of previous years. Key to the success of Somali piracy is a trifecta of location, opportunity, and profits. For the Somali perpetrators of hostage terrorism, piracy is a low-risk, high-reward enterprise made possible by multiple targets of low-hanging fruit: unprotected, slow-moving commercial vessels. Based primarily in the Puntland region of northeastern Somalia, pirate militias are tactically positioned to disrupt navigation in the Gulf of Aden, one of the world’s most important strategic waterways. Twelve percent of the world’s oil passes through the Gulf, which links the Red Sea and the Indian Ocean. Flanked on one side by Somalia and on the other by Yemen, the Gulf is the main maritime corridor through which Middle Eastern oil reaches the West. It is also one of the busiest sea-lanes in the world.

Somalia’s pirate militias pose a threat not only to worldwide commerce but also to global security. As Somali pirates gain strength at sea, they strengthen their position on land. A fragile transitional government propped up by the international community is under threat from two directions. From the south, the al-Qaeda-backed militant group al-Shabaab has pledged the overthrow of Somalia’s Transitional Federal Government in the cause of global jihad. In the north, pirate militias have all but wrested control of the province of Puntland from the central government. The potential for collaboration between the cash-strapped but powerful al-Shabaab and the wealthy, strategically positioned pirate clans of the north makes Somalia a new frontline in the global war against Islamic terrorism.

Somalia, a simmering cauldron of anarchy for two decades, has been credibly described as hell on earth. Since 1991, when the authoritarian regime of General Mohammed Siad Barre fell, Somalia has been gripped by internal warfare. Hundreds of thousands have been killed in the ongoing internecine conflict between clans and Islamic militants, and more than 1.5 million have been displaced from their homes. In the absence of any coastal authority to protect Somalia’s fishing rights, and faced with ecological disaster in the wake of the 2004 Indian Ocean tsunami, fishermen in the northern province of Puntland began turning to piracy as a means of survival and retribution. Reports document Robin Hood–like accounts of fishermen-pirates sailing out in skiffs to “retake” fish caught by foreign trawlers in Somalia’s territorial waters. But what they found in the safes of commercial vessels was far more valuable than the marine catch in the hold, and so the criminal cottage industry expanded. Pirates began preying on other seafaring vessels, hijacking larger boats for use as “motherships” to go after bigger targets: internationally flagged commercial freighters and tankers hundreds of miles out at sea.

Somalia’s pirates are not merry bands of lucky amateurs. They are organized militias with informants in foreign ports, and networks of ransom negotiators, money launderers, and arms runners abroad. Moreover, there is mounting evidence of collaboration between militant Islamists and pirate militias. While al-Shabaab initially viewed pirate militias as dangerous territorial rivals, they have begun to enter into a tentative alliance. Pirates supply al-Shabaab with cash and smuggled weapons in exchange for training and the use of ports in al-Shabaab-controlled territory. Al-Shabaab operatives, many educated abroad in al-Qaeda training camps, are able to provide pirates with the advanced tactics needed to challenge private security companies and maritime protection teams employed by global shipping companies.

Somalia’s pirates and jihadists may seem like strange bedfellows. To pirates, hostages are worth more alive than dead; a dead hostage will not fetch a hefty ransom payment. But to organizations like al-Shabaab, hostages are frequently worth more dead than alive. The torture and execution of hostages makes for chilling physiological “psyops” against infidels and serves as a rallying cry to fellow jihadists. But with ransoms of upward of $10 million being paid out to pirates, it is only logical that a cash-starved al-Shabaab would also turn to piracy as a source of revenue for their costly insurgency.

As the interests of pirates and jihadists converge in Somalia, the similar challenges they pose become all the more clear. Both groups are effectively stateless and lawless. They engage in active hostilities without regard for the laws of war or the protection of civilian life and property. For these reasons, pirates have existed in a legal category unto themselves for more than 2,000 years: hostes humani generis, enemies of all humankind. While recent attempts to treat al-Qaeda and its terrorist affiliates as hostes humani generis have failed, international law as it applies to pirates remains largely unchanged. The trouble is that the modern state system lacks the resolve to apply it. Whereas the Romans used to crucify pirates and the Carthaginians used to flay them alive, the UN Security Council’s crowning achievement in its campaign against piracy is a recent report detailing the successful “business model” adopted by Somali pirates (or, as the report termed them, “shareholders”). With enemies like these, who needs friends?

From a legal standpoint, pirates exist in a state of war against all. Consequently, every state has a right under international law to prosecute pirates in its domestic courts. However, not every state has the political or judicial will to exercise universal jurisdiction over pirates. Since 2009, the international community has foisted the burden of prosecuting Somali pirates on Kenya and the Seychelles, thus preferring to treat a global threat as a local nuisance. Australia, Canada, France, Germany, the United States, and the European Union contributed funds to establish a high-security courtroom in Kenya for the purpose of bringing captured pirates to justice. The courtroom opened in June 2010. Five months later, the High Court of Kenya at Mombasa put a quick end to the international community’s strategy of judicial outsourcing by ruling that it lacks jurisdiction to adjudicate acts of piracy committed beyond Kenya’s territorial waters.

It is not difficult to imagine why, purely as a matter of judicial policy, the Kenyan courts would disavow jurisdiction. No matter how secure a courtroom the international community wishes to build in Nairobi, it will not protect Kenya from the overflow of violence and terrorism from Somalia. More than 100,000 Somalis have sought refuge in Kenya, and al-Shabaab has sworn jihad against the Kenyan government. For Western powers to demand that a vulnerable state wage a judicial war against piracy on their behalf is, to put it politely, unreasonable. For the West to do so while its own nationals languish in captivity is, to put it bluntly, irresponsible.

This is not to say that the international community has ignored Somali piracy altogether. The U.S. Navy and the European Union Naval Force have been conducting active operations to deter and repress Somali piracy. Reports of their successful interruption of pirate attacks abound, from 2009’s dramatic rescue of the captain of the Maersk Alabama by Navy SEALs to the successful protection of humanitarian aid ships by the European Union’s naval contingent. But without sufficient support on land, many of their victories at sea have been Pyrrhic. When pirates are captured, they are generally handed over to local East African authorities that lack either the capacity or the will to prosecute them. Though in October 2010, the Somali government and the African Union Commission asked the UN Security Council to impose a full blockade on the Somali coast to curtail piracy and the influx of foreign fighters and weaponry, Secretary-General Ban Ki-moon responded with only a pledge to continue international engagement in Somalia with a “light footprint.” But as conditions in Somalia deteriorate, it is hard to imagine a lighter footprint than the one already left by the world body.

The State Department’s response to piracy off the Horn of Africa has been no more decisive. Secretary of State Hillary Clinton summarized the U.S. government’s approach to the crisis as follows: “We may be dealing with a 17th-century crime, but we need to bring 21st-century solutions to bear.” She was only half right. The “solutions” being brought to bear by the United States and the international community are decidedly au courant: institutional reports, diplomatic conferences, and multilateral handwringing. But the underlying problem is hardly as quaint as the secretary of state suggests. Instead of cutlasses, muskets, and cannon, these pirates are armed with Kalashnikov assault rifles, automatic weapons, and rocket-propelled grenade launchers. They are backed by regional magnates willing to front the resources necessary to fund and sustain a hostage-taking operation, providing everything from food to cell phones to qaat, a local narcotic.

The ambivalent legislative response by the United States government to piracy has likewise been confounding. At present, ransoms paid to pirates are treated as a basic cost of navigation off the Horn of Africa. It is assumed that companies will simply insulate themselves against such costs with insurance. A recent Congressional Research Report offers something that looks disturbingly like money laundering as an option for dealing with piracy. It suggests that the federal government might opt to reinsure shipping companies in the event that private insurance proves insufficient to cover the cost of ransoming mariners. So while the federal government will not pay ransoms directly, it might pay shippers to pay insurers to indemnify ransom payments to pirates. Although maritime insurance rates have so far increased tenfold in response to Somali piracy, the federal government apparently does not think this cost sufficiently high to warrant intervention. The pirates of Jefferson’s time on the shores of Tripoli should have been so fortunate.

Yet as ties between Somali pirates and al-Shabaab grow closer, it will become impossible for the U.S. to treat ransom payments as mere transaction costs. In April 2010, President Obama issued an executive order banning the transfer of funds to a list of named individuals and one entity. Two of the named individuals are pirate leaders. The named entity is al-Shabaab.

Piracy off the Horn of Africa is not just a maritime problem. It is a problem of lawlessness that begins on land, moves out to sea, and is felt the world over. The response of the international community in dealing with it has been wholly inadequate. In fact, in the absence of a coherent response to the problem of piracy, Somalia’s Transitional Federal Government has begun accepting donations from an as-yet-unnamed Muslim state for the establishment of a military force to combat piracy in Puntland. Puntland, which is believed to be rich in natural gas and oil deposits, is a strategic area for more reasons than piracy alone. The mysterious nature of these donations is somewhat troubling, as it could hinder the growth of a transparent, independent government in Somalia.

At this point, however, the absence of any effective legitimate authority in Somalia is a greater threat to the growth of transparent, independent government in that country than anything else. Piracy and al-Shabaab rose from the ashes of the Somali conflagration of the 1990s and early 2000s, and now they are fueling a new fire. Two forms of hostage-terrorism—one for profit and one for ideology—are finding common ground in their mutual utility. Allowing this connection to proliferate will not only shatter any hope of a free and stable Somali state; it will also create a new sanctuary from which Muslim extremists can project jihad abroad. And all the while, the humanitarian crisis in Somalia continues to deepen.

The spread of piracy has been treated more as a nuisance to be endured rather than as a deadly cancer that must be extirpated for the sake of both Somalia and the rule of law. For all the lip service that has been paid in Washington and other capitals to this issue, addressing it has never been any government’s priority. That must change. The absence of decisive Western leadership has allowed the problem to fester. Somali piracy has become one of the most dangerous fronts in the struggle against the financing of international terrorism. Pirates must now be treated with all the seriousness with which we treat al-Qaeda operatives.

There must be a recognition that the beginning of the solution here, as it has been with every past successful campaign to wipe out an outbreak of piracy, whether in the Caribbean or along the North African coast, is to be found in a military response. While a full-scale blockade of the entire Somali coast may not be practicable, even with a reinforced Western naval presence in the area, stepping up the scale and the frequency of patrols will begin to lower the odds that are presently stacked in favor of the pirates.

Equally important is the need to create a reliable judicial process that will prosecute captured pirates and impose sentences that will signal to ordinary Somalis that piracy is no longer a livelihood with great rewards and few costs. To accomplish this, an international tribunal for the adjudication of captured pirates must be established.1

The presence of a well-funded, ably staffed international tribunal to adjudicate acts of piracy will render the efforts of multinational naval patrols all the more effective. The streamlining of international cooperation at sea and on land will reduce the overall incidence of piracy and, in so doing, cut off one of al-Shabaab’s funding streams at its source. The international community will thereby begin to eliminate two of the greatest threats to the establishment of stable, legitimate, independent government in Somalia. Above all, it will break down the stranglehold that al-Shabaab has on humanitarian aid and make possible a material improvement in Somalia’s ongoing humanitarian crisis.

More than a decade of half-measures and handwringing on the part of the international community has done little to improve the lot of Somalia or ensure the freedom of the seas in its environs. If anything, conditions in the state continue to deteriorate while the world looks on. But the cost of this feckless response to piracy has been greater than the damage to one country or even the toll it has exacted on international shipping. Allowing Somalia to become the stronghold of what must increasingly be seen as a new variant on the Islamist terrorist network that is already in a state of war with the West would be a major blow to international security. If the link between these two forces is not soon broken, the consequences will be incalculable. Seen from the perspective of an Islamic world that is testing the will of the democratic West to prevail over terrorism, the spectacle of captured pirates being allowed to slip through the cracks of international law is proof that Islamists are poised to prevail. Just as the “broken windows” theory of urban policing illustrates the importance of not letting any crime go unpunished, so the West must see piracy as a potent threat that must be vanquished and not merely a series of human-interest stories about released hostages; otherwise the problem will only fester. Even worse, despite the unique nature of Somalia’s problems, the West’s inability to cope with the pirates will come to be seen as a new model of success for terrorism.

The international community has at its disposal many of the tools needed to clear the way for Somalia’s rehabilitation; it has only to find the resolve to use them effectively. Continued maritime patrols on the high seas and vigorous prosecution of piracy in the courtrooms are the critical first steps in this process. But until Western political leaders recognize that Somali outlaws are not merely an annoyance but a deadly peril to international law and stability that must be defeated at all costs, we must expect that the toll of blood and treasure exacted by this new breed of pirate will continue to grow.

Footnotes

1 The International Tribunal for the Law of the Sea, a UN organ established pursuant to the Third Law of the Sea Convention (LOSC), is the most logical umbrella organization for such a tribunal, as it already has jurisdiction over acts of piracy under the LOSC. While it has yet to exercise that jurisdiction in matters relating to Somali piracy, the Hamburg-based tribunal is well equipped to do so.

About the Authors

Tara Helfman teaches law at Syracuse University College of Law. Dan O’Shea established and served as the coordinator of the Hostage Working Group at the U.S. Embassy in Iraq. He is the president of Daniel Risk Mitigation Inc., a fellow at the Center for Advanced Defense Studies, and a Navy SEAL Commander in the Naval Reserves. The authors would like to thank Wing Commander Paddy O’Kennedy of EU NAVFOR for providing them with current data on the capture and arrest of pirates.